LEGALUPDATES.COM

• Videotaping Law Enforcement Officers in Public
• The First Amendment and Videotaping Law Enforcement Officers

A private person videotaping law enforcement officers in public, while the officers are in the performance of their duties, is a First Amendment right.  As such, a state statute attempting to criminalize the act of videotaping an officer while acting in the performance of his or her duties is unconstitutional.

The Arizona Legislature enacted a new statute via HB (“House Bill?”) 2319, codified at Arizona Revised Statutes (i.e., “A.R.S.”) § 13-3732, which made it a class 3 misdemeanor for “a person to knowingly make a video recording of law enforcement activity if the person making the video recording is within eight feet” of the activity and has been directed to stop recording by law enforcement.  Scheduled to take effect on September 22, 2022, plaintiffs sued (under 42 U.S.C. § 1983) defendant Mark Brnovich in federal court in his capacity as the Arizona Attorney General, seeking a preliminary injunction preventing the enforcement of this new criminal statute.  The plaintiffs argued that the new statute infringed on their First (freedom of speech) and Fourteenth (due process) Amendment rights   AG Brnovich made it easy by rolling over in this lawsuit, filing a “Notice of Non-Opposition” in response.

The federal District Court of Arizona granted the plaintiffs’ motion for a preliminary injunction, “enjoin(ing) the enforcement of A.R.S. § 13-3732 pending further order.”  Recognizing that this lawsuit is only in its preliminary stages, the District Court first noted the rules on preliminary injunctions.  “To obtain a preliminary injunction, a plaintiff must show that ‘(1) [it] is likely to succeed on the merits, (2) [it] is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in [its] favor, and (4) an injunction is in the public interest.’” These four requirements to a preliminary injunction lawsuit are referred to as the “Winter factors,” as set out by the U.S. Supreme Court in Winter v. Natural Resources Defense Council, Inc. (2008) 555 U.S. 7. 

Winter factor #1:  Using these standards, the District Court had no problem finding that the plaintiffs were likely to succeed on the merits.  This is so because it is clearly established under the First Amendment that any private citizen has the right to “record law enforcement officers engaged in the exercise of their official duties in public places,” citing a pile of cases (see Note, below) to that effect.  Also, because the right under the First Amendment to record law enforcement activity is “clearly delineated,” involving a “content-based restriction,” a court’s analysis of the constitutionality of the statute is subject to “strict scrutiny;” meaning that the new statute must be “necessary to serve a compelling state interest” and “narrowly drawn to achieve that end.”  Per the Court: “Strict scrutiny is ‘an exacting test’ requiring ‘some pressing public necessity, some essential value that has to be preserved; and even then the law must restrict as little speech as possible to serve the goal.’”  (Turner Broadcasting Systems, et al. v. Federal Communications Commission, et al. (1994) 512 U.S. 622, 680.)  The obvious purpose of A.R.S. § 13-3732 is to prevent bystanders with their cameras (typically a cellphone camera) from interfering with, or distracting, law enforcement officers as they attempt to perform their duties.  However, the Court noted that Arizona already has other laws on the books making it illegal to interfere with police officers; e.g., A.R.S. §§ 13-2402, 13-2404. (But see Note, below.)  Also, A.R.S. § 13-3732 is not “narrowly tailored,” it being a lot broader than needed to prevent someone from interfering with a police officer.  It was also noted that the new section prohibits only “video recording” and does not address audio recordings or photographs taken from the same distance or even the same device, nor does it address persons who may be using their mobile phones for other purposes, such as texting.  Finding that the new statute cannot withstand the “strict scrutiny” test, the Court found it unnecessary to consider the plaintiffs’ alternate arguments that A.R.S. § 13-3732 also fails to withstand scrutiny under a “time, place and manner” analysis, or that the section is void for vagueness, although the Court gratuitously commented that the plaintiffs would have likely prevailed on these arguments as well. 

Winter factor #2: The Court also found that the plaintiffs would “suffer irreparable harm” under this new statute. That’s because one’s right to videotape law enforcment officers in action is protected by the First Amendment.  As for the importance of the First Amendment, the U.S. Supreme Court has held that “(t)he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”  (Elrod v. Burns (1976) 427 U.S. 347, 373.)

Winter factors #3 and #4: Lastly, the Court concluded that upon balancing the equities, it tips in the plaintiff’s favor and that injunctive relief is in the public interest.  With the “irreparable” harm plaintiffs would suffer (see above), there would be “little to no risk of irreparable harm to Defendants’ interests, primarily due to the fact that law enforcement officers already have many tools at their disposal to prevent interference with their activities.”  At the same time, the “video recording of police activities allow the public access to information concerning law enforcment activities.” This serves the public interest in that “public access (to such activities) plays a significant positive role in the functioning of our democracy.”  (Index Newspapers LLC v. United States Marshals Serv. (9th Cir. 2020) 977 F.3rd 817, 830-831.)  The federal Third Circuit has recognized that “videos of police interactions with the public have ‘contributed greatly to our national discussion of proper policing.’” (Fields v. City of Philadelphia (3rd Cir. 2017) 862 F.3rd 353, 357-358.) Also, “it is always in the public interest to prevent the violation of a party’s constitutional rights.”  (Melendres v. Arpaio (9th Cir. 2012) 695 F.3rd 990, 1002.) 

Conclusion:  Having satisfied all four of the Winter factors, the District Court here held that the preliminary injunction should issue, blocking implantation of A.R.S. § 13-3732.

With the Arizona A.G. declining to oppose this lawsuit, there certainly won’t be any appeal to the Ninth Circuit Court of Appeals, which normally would have been the next step.  So with this preliminary injunction going unchallenged, I have to assume (not knowing squat about appellate procedure) it will at some point be made permanent. Looking at Arizona’s proposed new statute as discussed above, and with all the case law saying that private citizens have a First Amendment right to videotape the police in action, one has to wonder what Arizona’s legislators were thinking when they enacted A.R.S. § 13-3732.  It’s possible they figured that by limiting it to within 8 feet of the officers, and only after being told to back off, that it was okay to enact an exception to the general rule.  These limiting provisions (i.e., eight feet and being directed to stop) were not even discussed by the Court.  So I guess we can assume that the Court’s silence on this issue means that including the 8-foot and back-off requirements, alone, are not enough to justify an exception to the general rule that videotaping cops is lawful.  As noted above, the Court also cites a couple of provisions available to Arizona officers to use when someone interferes with them.  (A.R.S. §§ 13-2402, 13-2404.)  But reading them, the former specifically does not include hindering an officer while making an arrest, and the latter involves a person’s refusal to assist in the control of a fire.  In California, we have Pen. Code § 148(a)(1) (interfering with an officer in the performance of his or her duties).  There’s no case law, however, telling us how close a would-be video-taper has to get before they are actually interfering with an officer, or whether it’s constitutional to ever use section 148 when the issue is a private person videotaping cops in the field.  Given the consistent importance courts attach to the First Amendment, I would assume the use of section 148(a)(1) would not be allowed under the circumstances we’re discussing here.  And by the way, I have an 8-page memo describing what I term above as “a pile of cases” on this issue, as well as the legal problems inherent in an officer’s attempt to seize the video and photographic evidence that results.  You need merely ask.

• Probable Cause Searches of Automobiles
• The Automobile Exception to the Search Warrant Requirement
• The Odor of Marijuana and Searches of Vehicles

A strong odor of burnt marijuana emanating from inside a motor vehicle provides probable cause to search that vehicle under the “automobile exception.”  The fact that the occupants of the car were under the age of 21 insures the legality of a search of the vehicle for the source of the marijuana odor.

Twenty-year-old defendant Phillip Castro and two of his gangster companions were enjoying the pleasures of toking on some very potent weed while sitting in Castro’s car on the evening of June 22, 2020.  Unfortunately for them, 9½-year LAPD veteran Officer Miguel Zendejas (assigned to the Foothill Gang Enforcement Detail) happened to drive by just as the party was reaching it height.  Officer Zendejas’ partner, Officer Organista, ran the registration on the vehicle’s license plate, showing it to be expired.  Intending to inquire as to the expired registration, Officers Zendejas and Organista drove up to defendant’s parked car, the windows to which were all open.  As they did so, Officer Zendejas (as he later testified) could smell the distinctive odor of burnt marijuana emanating from the car.  Officer Zendejas contacted defendant, who was sitting in the driver’s seat.  As he did so, he recognized the right seat passenger and another male lying down in the back seat (as if hiding) to be gang members, both of whom the officer knew to be under the age of 21.  Defendant also admitted that he too was only 20 years of age.  When asked if he was smoking marijuana, defendant admitted that he had been, but claimed that it was two hour earlier. 

The officers suspecting that defendant wasn’t being entirely truthful (shock!), everyone was asked to get out of the car.  For officer safety purposes, defendant and his companions were  handcuffed as the officers searched their vehicle.  Although no marijuana was found, an operational and loaded nine-millimeter handgun with no serial number was recovered from an open duffle bag in the trunk.  After a Miranda advisal, defendant admitted the gun was his.  Charged in state court with carrying a loaded, unregistered handgun in a vehicle, defendant eventually (after a series of lower court rulings which eventually upheld the lawfulness of the search) pled no contest to the charge.  Sentenced to two years of probation with search and seizure conditions and 120 days in jail, defendant appealed.

The Second District Court of Appeal (Div. 1) affirmed.  Defendant’s argument on appeal was (as it was in the trial court) that the search of his car was an illegal warrantless search incident to his arrest, citing In re D.W. (2017) 13 Cal.App.5th 1249.  The Court found the D.W. case to be inapplicable to this situation, however, in that Castro’s arrest did not involve a “search incident to arrest” (as was the case in D.W.), but rather a search based upon probable cause and the “automobile exception” to the search warrant requirement. 

In 2016, the voters passed Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act, which legalized the possession of up to 28.5 grams (an ounce) of cannabis by individuals 21 years of age or older. (H&S Code § 11362.1(a)(1).)  This new provision specifically provided that lawfully possessed cannabis is “not contraband.” Thus, an adult possessing up to an ounce is lawful conduct under the statute.  The section also notes that such lawful conduct may “not constitute the basis for detention, search or arrest.” (Italics added)

The problem is that defendant and his two companions were all under the age of 21, making the possession of any amount of marijuana illegal, as proscribed by H&S Code § 11357. The protections from “detention, search, or arrest,” as contained in H&S Code § 11362.1(a)(1), did not apply to defendant and his companions. Thus, the only issue left was whether the odor of burnt marijuana (plus defendant’s admission to having smoked marijuana two hours earlier) was sufficient to constitute probable cause to search defendant’s car for the source of that odor.

The Court held that under the circumstance of this case, it was.  Officer Zendejas testified that he noticed a “strong odor” of “burnt marijuana” emanating from the car, lending weight to the officer’s suspicions that the three underage subjects illegally possessed contraband with them in the car.  The fact that defendant claimed the smoking had gone on two hours earlier did not detract from the officer’s probable cause.  “Officer Zendejas’s belief ‘that there was still marijuana in the car based on the current smell of marijuana coming from inside the car’ (Italics added) was reasonable under the circumstances of this case.’”  With that probable cause to believe that there was still marijuana in the car, the “automobile exception” to the warrant requirement allowed for an immediate warrantless search.  As noted by the Court: “Under the so-called automobile exception, officers may search a vehicle without a warrant if it ‘is readily mobile and probable cause exists to believe it contains contraband’ or evidence of criminal activity.” (People v. Johnson (2018) 21 Cal.App.5th 1026, 1034.)  “Once an officer has probable cause to search the vehicle under the automobile exception, they ‘may conduct a probing search of compartments and containers within the vehicle whose contents are not in plain view.’” (People v. McGee (2020) 53 Cal.App.5th 796, 801.) As also noted by the Court, “where such probable cause exists, a law enforcement officer may search the vehicle ‘irrespective of whether [the offense] is an infraction and not an arrestable offense.’” (Id. at p. 805, quoting People v. Fews (2018) 27 Cal.App.5th 553, 564.)  The search of the car was therefore lawful.

Note that as held by the Court, the 2017 case of In re D.W. does not apply to this case.  D.W. is a “search incident to arrest” case where this case is a “search with probable cause” case.  These are two distinctly different legal theories for which the rules are different even though sometimes overlapping.  First, defendant and his companions weren’t arrested despite having been handcuffed; the handcuffing merely being a safety measure with the officers being outnumbered.   But even if they had been arrested, the illegal possession of less than an ounce of marijuana is a citable offense only.  Because a person cited for possession of less than an ounce of marijuana is not going to be transported to jail (a “non-custodial” arrest), searches incident to a citation (at least without additional probable cause to believe that the subject is carrying on his person even more contraband) violate the Fourth Amendment.  (Knowles v. Iowa (1998) 525 U.S. 113.)

Searches with probable cause, however, constitute a whole different legal theory despite the occasional overlapping.  It is incumbent upon every officer in the field to know the rules for both, and when they apply. With probable cause to believe contraband is present, the general rule is that a search is allowed, but only after obtaining a search warrant.  Searches of a person is one exception to the warrant requirement.  Searches of a motor vehicle is another, often referred to as the “automobile exception.”  This exception is based upon the theory that vehicles have a lessened expectation of privacy (Cady v. Dombrowski (1973) 413 U.S. 433.) and because of their inherent mobility (Carroll v. United States (1925) 267 U.S. 132.). 

Lastly, note that there is some authority for the argument that when a subject possesses a legal amount of marijuana in a vehicle, with nothing to indicate that there might be more, or that it is being transported illegally, an officer does not have sufficient probable cause to search for more.  (See People v. Lee (2019) 40 Cal.App.5th 853; People v. Johnson (2020) 50 Cal.App.5th 620; and People v. Hall (2020) 57 Cal.App.5th 946.)  There is even authority for the argument that the simple odor of marijuana alone is insufficient to justify a search for the source of that odor, there being insufficient evidence to believe that even if there is more in the car, it is illegally possessed.  (Blakes v. Superior Court (2021) 72 Cal.App.5th 904.)  But in this case, despite defendant’s claim that he had been smoking marijuana two hours earlier (inferring that it was all gone), the Officer’s testimony that he noticed a “strong odor” of “burnt marijuana” emanating from the car was sufficient to provide an exception to the above cases.  And even if defendant and his homies weren’t under age, People v. Fews, supra, provides authority for the argument that with that “strong odor” of “burnt marijuana” emanating from the car, the officers had probable cause to suspect that more than the otherwise legal amount of marijuana might be in the car.  Lastly, note the fact that no marijuana was found is also irrelevant; the issue being what the officers reasonably believed when they initiated the search; not what they actually found afterwards.  The search of defendant’s car, therefore, was lawful. 

• Illegal Detentions and Attenuation of the Taint
• The Fruit of the Poisonous Tree Doctrine
• Implicit Bias 

An illegal detention may poison an otherwise lawful search under the “fruit of the poisonous tree doctrine.”  Intervening circumstances, however, may attenuate that taint, making the subsequent search lawful.  Whether or not the taint of an unlawful detention is attenuated depends upon the circumstances.  (Implicit biases may subconsciously affect an officer’s thinking on these issues.)

Officer Matthew Croucher of the San Jose Police Department responded to a report of a possible vehicle burglary in progress in a business parking lot early one evening in January, 2017.  Upon arrival, he was told by a security guard that she had seen two “suspicious individuals on bikes” shining flashlights into parked cars. Checking the parking lot, Officer Croucher was unable to find anything.  However, in an adjacent parking lot he found defendant Duvanh Anthony McWilliams reclining in the passenger seat of a car, and “just hanging out.” 

With the arrival of backup, Officer Croucher contacted defendant and told him to get out of his car.  The officer later testified that this was his usual practice, done for safety reasons.  Defendant complied.  Asked for identification, defendant retrieved it from his vehicle.  Upon conducting a records check, it was discovered that defendant was “on active and searchable parole.”  (I.e., a “Fourth waiver;” see Pen. Code § 3067(b)(3).) 

Pursuant to defendant’s parole search conditions, Officer Croucher searched both defendant and his vehicle.  The search resulted in the recovery of a firearm, drugs, and drug paraphernalia.  Charged in state court with multiple gun and drug offenses, defendant’s motion to suppress was denied.  In so ruling, the trial court specifically found that defendant had been lawfully detained.  Defendant pled guilty and was sentenced to seven years in prison. 

Upon appeal, the Sixth District Court of Appeal, in a split 2-to-1 unpublished decision, affirmed.  (See People v. McWilliams (6th Dist. Mar. 8, 2021) 2021 Cal.App. Unpub. LEXIS 1470.)  In so holding, however, the appellate court ruled that defendant had been illegally detained (disagreeing with the trial court on this issue), but that (in the opinion of two of the three justices) the evidence was still admissible under an “attenuation of the taint” theory; i.e., the fact that defendant was subject to a Fourth waiver and searched accordingly attenuated the taint of his illegal detention.  defendant appealed to the California Supreme Court.

The California Supreme Court reversed in a unanimous decision.  Under the Fourth Amendment’s “Exclusionary Rule,” “both the ‘primary evidence obtained as a direct result of an illegal search or seizure’ (which includes the illegal detention of an individual) and ‘evidence later discovered and found to be derivative of an illegality’” is subject to suppression.  The legal theory applicable to the latter is most often referred to as the “fruit of the poisonous tree” doctrine.  (Utah v. Strieff (2016) 579 U.S. 232, 237; Segura v. United States (1984) 468 U.S. 796, 804.) 

Following this theory, the Court ruled in this case that the guns and drugs found in defendant’s vehicle, even though located during what was otherwise a lawful Fourth waiver search, were the products of defendant’s illegal detention and therefor subject to suppression. In so ruling, the Court held that the fact that defendant was subject to a Fourth waiver did not, under the circumstances of this case, attenuate the taint of the illegal detention.  Here, it was conceded that defendant had been unlawfully detained.  Specifically, Officer Croucher was investigating the possible burglary of vehicles based upon the security guard’s report to him that she’d seen two individuals on bicycles and with flashlights who were casing locked vehicles in a parking lot.  No such individuals could be found.  However, defendant was soon found in an adjacent parking lot, alone, sitting (or “reclining”) in his own car, with no bicycle and no flashlight.

There was absolutely nothing to indicate that defendant was related in any way to the two individuals the security guard had seen earlier other than by being in the general vicinity.  By ordering him out of his car and requiring him to provide his identification, he had been detained.  This detention was unlawful, there being no evidence to support an argument that he was involved in any criminal activity. 

On its face, the items found in his car were the products of this illegal detention as the “fruit of the poisonous tree.”  However, as noted above, defendant was subject to search and seizure conditions (i.e., a “Fourth waiver.”)  An exception to the applicability of the fruit of the poisonous tree doctrine is when something occurs between an illegal detention and a subsequent search which, except for the prior illegal detention, would have been lawful.  The label attached to this type of an exception is “attenuation of the taint.”

It was argued by the State that the existence of a Fourth waiver attenuated the taint of defendant’s illegal detention.  The primary authority for this argument is the California Supreme Court case of People v. Brendlin (2008) 45 Cal.4th 262, and the U.S. Supreme Court case of Utah v. Strieff (2016) 579 U.S. 232. In both, an illegal detention was followed by the discovery of arrest warrants for each respective defendant.  Arrested on the warrants, each was searched incident to arrest, both resulting in the recovery of illegal drugs. Ultimately in both cases, the existence of an arrest warrant was held to attenuate the taint of the preceding illegal detentions.  The State made the argument here in this new case that the existence of defendant’s Fourth waiver similarly attenuated the taint of his illegal detention. 

In evaluating such an argument, a court is to apply a three-part test as first described in the U.S. Supreme Court case of Brown v. Illinois (1975) 422 U.S. 590, at pages 603 to 604: (1) The “temporal proximity” between the unlawful conduct and the discovery of evidence; (2) the “presence of intervening circumstances;” and (3) the “purpose and flagrancy of the official misconduct.” (Referred to as the “Brown factors.”) Once the defendant establishes a Fourth Amendment violation, the prosecution bears the burden of proving that the taint has been attenuated, allowing for the admissibility of the subsequently found evidence.  Applying the Brown factors to the instant case, the Court held that the “temporal proximity” between defendant’s illegal detention and the resulting search was minimal; a matter of several minutes only.  To save the search, this time interval would have to have been “substantial.”  It clearly was not.  As for the second Brown factor, the Court concluded “that the discovery of the parole search condition had no considerable attenuating effect.”  In reaching this conclusion, the Court noted that in both Brendlin and Strieff, the intervening circumstance was the belated discovery of an arrest warrant.  An arrest warrant is, in effect, a judicial mandate to take a suspect into custody.  With an arrest warrant, an officer is not given a choice.

In comparison, a Fourth waiver does not mandate that the detainee be searched, but rather presents the officer with the option of conducting a Fourth waiver search.  Per the Court: “(A) parole search condition merely authorizes a suspicionless search of the parolee for purposes of monitoring the parolee’s rehabilitation and compliance with the terms of parole. It is not a judicial mandate (as it is with an arrest warrant), nor does it compel further action of any sort.”  Thus an arrest warrant mandate makes for a stronger intervening factor than merely providing an officer with the legal authority to conduct a search without mandating that he do so.  As a result: “It suffices for us to conclude that the discovery of the parole search condition had no considerable attenuating effect under the circumstances of this case.” In this case, therefore, Brown factor #2 strongly supports defendant’s argument that there was no attenuation of the taint.  As for the third Brown factor—the flagrancy and purposefulness of police conduct—the Court first noted that this factor is directly tied to the purpose of the exclusionary rule; i.e., “deterring police misconduct.”

In this case, while noting that there is no reason to suspect that Officer Croucher acted in bad faith, the officer did in fact detain defendant with absolutely no reason to believe he was one of the bicycle-riding, flashlight-toting, vehicle burglary subjects.  The purpose of the exclusionary rule is to deter such an illegal detention.  “Here we conclude that the officer's decision to detain McWilliams merely because he was in the broad vicinity of reported suspicious activity was purposeful and further supports applying the exclusionary rule to deter this type of unconstitutional conduct.”  This conclusion supports a finding that Brown factor #3 weighs against the application of the attenuation doctrine.  Based upon all the above, the Fourth waiver parole condition was held not to be sufficient to attenuate the taint of the illegal detention.  The evidence in this case, therefore, should have been suppressed.

This brief is not intended to be critical of Officer Croucher, by the way.  On its surface, he did some good police work here.  I might have suggested, however, that he could have turned down his aggressiveness a notch or two, and conducted this contact as a consensual encounter instead.  He could have done this by not being quite so in-your-face, seeking instead voluntary compliance.  (“Hi, sir.  How are you?  Do you mind stepping out of the car and talking to me for a moment? May I see your driver’s license?”)  A Fourth waiver search conducted during a consensual encounter is not illegal.

On another note, the Court mentions almost in passing defendant’s assertion that he was detained and searched because of his race; i.e., African-American, but concludes that “nothing in the factual record supports that inference.”  I have to agree.  Black or White, McWilliams was the only person in the vicinity and was going to be contacted no matter what.  But either way, I’d like to think we’re past that era when a person’s race is ever a consideration.  And there’s certainly nothing in the evidence here indicating that Officer Crouch is racist.  But then I read Associate Justice Goodwin Liu’s two-page (pgs. 449 to 451) concurring opinion, talking about “implicit bias.”  Known as a highly intelligent legal scholar who commonly digs around beneath the surface of what otherwise might seem to be a simple, or even non-existent, issue, Justice Liu asks whether “implicit bias” might have been something to consider.  Per Justice Liu, assuming a police officer is not overtly racist, there still often exists a subconscious belief that a Black person is more likely to be guilty of something—thus justifying a detention, arrest, and/or search—merely because he or she is Black.  As noted by Justice Liu: “(A)n officer’s decision making may be vulnerable to implicit biases that result in a heightened risk of exploitation of the unlawful detention.”  Justice Liu cites a number of studies indicating that such thinking is simply fallacious, and not supported by the statistics.  But he makes the argument that such a subconscious “implicit bias” often does exist nonetheless, no matter how non-racist any of us may think we are. I have to say I found his discussion of this issue to be very interesting, if not downright persuasive.  If you’d like a copy of his comments on this issue, I’ve saved it all in a separate file and can e-mail it to you upon request.  It might give you some “food for thought.”